Human rights and the rule of law in Southern Africa … and other interesting places

Child Marriage in Tanzania (Part 1)

In 2016, the High Court in Tanzania ruled to make child marriages illegal. In a landmark decision for the country, the High Court ruled that the Law of Marriage Act 1971 which permitted girls to marry at the age of 15 with parental permission and 14 with the permission of the court deserved to be declared null and void. The law was declared unconstitutional as it permitted discrimination between boys and girls in allowing boys to get married at a later age than girls.

This decision closely applied the reasoning of the High Court of Zimbabwe in another landmark child marriage case. In the Zimbabwe decision, the High Court ruled that it was necessary to

‘modify or abolish existing laws, regulations, customs and practices inconsistent with the fundamental rights of the child. There was obvious social need to break with the past where a child aged 16 could be turned into a wife.’

The High Court in Tanzania therefore gave the government a year to comply with the order and rectify the law. However, in September 2017 Tanzania’s government appealed the decision arguing among other things that the High Court was wrong to declare the Law of Marriage discriminatory; equate the age of the child with the age of marriage; hold that customary and Islamic laws did not apply to the law of marriage and declare the applicable parts of the law null and void. As a result, a hearing will take place before Tanzania’s Court of Appeal to determine whether the High Court’s decision banning child marriage stands.

In order to better understand the debate on child marriage in Tanzania, it is necessary to explore how the law permitting it first came about and the arguments for and against it. In 1967, Kenya and a number of East African countries set out to codify their laws relating to marriage. This was needed because the region has a number of influential religious communities including lslamic, Hindu and Christian all with different rules on marriage. In addition to this, traditional African customs play a huge role in society as does the common law. To combat disparities in the law relating to marriage and reconcile the different influences, the then government of Jomo Kenyatta commissioned a report to make recommendations and replace the law existing at the time.

The report that ensued was picked up by a number of neighbouring countries and would form the basis of the Tanzanian Law of Marriage Act 1971. Among the many recommendations made in the report was a section focused on the minimum age of marriage. The report prioritised putting the best interests of the child before customary and religious rules and concluded that child marriage was

‘wrong in principle and contrary to the best interests’ of the child. The report added that ‘a marriage where either party is below the minimum age is likely to lack the necessary ingredients for stability and may not, therefore, always be in the best interests of the State or of the partias or of the unborn child…’

This topic will be continued in subsequent blog posts…

Legislation: Sections 13 and 17 of the Tanzania Law of Marriage Act 1971.